Change in Custody?...m

[Giggles]

Original Divorce/Custody Decree set in AK back in 1993

In 1994 50/50 Joint custody ordered.

In Dec 1996 CP got orders to Ft. Bragg, NC.  NCP tried to stop move but was denied by the court, CP was allowed to take child to NC.  NCP could not move at that time due to pregnancy.

In May 1997 (2 weeks after birth of son) NCP moved to MD (that's the closest I could get to NC and still have family support).  

CP and OD still currently live in NC, CP is in the Military stationed at Fort Bragg, NC.  CP has gotten word (but no formal orders) that he will be moving to Ft. Irwin, CA sometime this summer.  NCP is still in MD.

OD is 14 years old and does not want to move to CA.  She wishes to move in with NCP while CP is in CA, but has expressed her desire to move back to NC if the CP moves back in a years time.  At this time it is unclear as to how long the CP will be in CA.

Current relations between NCP and CP are fairly good, however, OD has expressed her wishes to the CP that she wants to move in with NCP rather than CA and CP stated to her that it wasn't an option.  

OD will be starting High School in the fall.  NCP has done some research and found that the CA High Schools she could attend there don't even come close to being as good as the schools in NCP's area (the HS she would attend in NCP's area is listed as being #675 out of the TOP 1000 HS's in the NATION).

CP has no family in the CA area, in fact all his family is located on the East coast (NC and TN).  Not only will OD be with her 2 other siblings (NCP has 2 additional children), NCP's father is in the area, her uncle (NCP's brother) is also in the area.  NCP has fairly good relationship with CP's Mother as well.

QUESTIONS:

1.  I would rather do this with out going to court, however, I know the CP will not go for it.   Given the fact that OD wishes to move in with NCP, family in the area and better schools, how much weight would be given to the 14 y/o's wishes?

2.  I know I will probably have to file in NC and from what I have read regarding NC courts, they like to go through "mediation" first.  I seriously doubt this will work because CP has a history of not cooperating with "mediation".  Should mediation be ordered, but CP runs out of time prior to him having to report to CA, what happens then?  
2a. Could the NC court block him from taking her to CA until the mediation process is complete?

3.  NCP pans on drawing up a "temporary" agreement and talking to CP about the change in custody before NCP files anything.  Basically stating that while CP is in CA, child will reside with NCP, visitation will be as follows (blah...blah...blah) then upon CP's return to NC, residential custody will revert back to CP (these are her wishes).  Should the CP reject this agreement and the NPC files a formal custody change, can the NCP use it as "evidence" to the CP's uncooperation?

4.  Any other suggestions?

THANK YOU SOO MUCH!!! :-)

[socrateaser]

>QUESTIONS:
>
>1.  I would rather do this with out going to court, however, I
>know the CP will not go for it.   Given the fact that OD
>wishes to move in with NCP, family in the area and better
>schools, how much weight would be given to the 14 y/o's
>wishes?

If the child is mature enough to state her desire competently to the court, then I believe, that testimony will probably be decisive.

>2.  I know I will probably have to file in NC and from what I
>have read regarding NC courts, they like to go through
>"mediation" first.  I seriously doubt this will work because
>CP has a history of not cooperating with "mediation".  Should
>mediation be ordered, but CP runs out of time prior to him
>having to report to CA, what happens then?  

You should inform the court in your petition that the situation is running up against a time constraint created by U.S. Military and that you need an expedited resolution. You can ask that the court waive mediation because of the time constraint.

>2a. Could the NC court block him from taking her to CA until
>the mediation process is complete?

Yes, you could ask for temporary custody in the event that the case extends beyond his move date.

>
>3.  NCP pans on drawing up a "temporary" agreement and talking
>to CP about the change in custody before NCP files anything.
>Basically stating that while CP is in CA, child will reside
>with NCP, visitation will be as follows (blah...blah...blah)
>then upon CP's return to NC, residential custody will revert
>back to CP (these are her wishes).  Should the CP reject this
>agreement and the NPC files a formal custody change, can the
>NCP use it as "evidence" to the CP's uncooperation?

This is a waste of time. The agreement will merely delegate the CP's present custody rights to the NCP, but the CP can simply take the child to CA at the last second, irrespective of the agreement and simply say, "I changed my mind," and there would be nothing that you could do about it, because only the court can order custody changed, so the agreement is unenforceable.

The agreement would be evidence of the parties' intent at the time it was made, and you might be able to use it to get a last-minute restraining order, but unless you actually have the agreement ordered by the court, it has no force.

>4.  Any other suggestions?

If you can get the child to a psychologist who will testify that the child genuinely wants to remain in NC, then I would petition for a custody mod in NC and submit the therapist's report with a motion for temporary primary custody. If you can't, I'd file anyway and offer an affidavit in the child's words stating her desire to remain in NC, and I ask for the same temporary order. I'd also explain the time constraint and ask to waive mediation and for an expedited timeline.

NC is a very military friendly jurisdiction, so that could work against you. On the other hand, the court is likely to have a lot of experience with this sort of move-away issue and may tell the parties or their attorneys what the likely outcome will be, right from the start. That way you won't be waiting a long time for a decision that may already be determined in the court's mind.

Judges aren't supposed to prejudge cases, but in family law, it happens every day.

File a petition to modify custody, move for a temor tell the court